Is Drone Racing Legal?

Star Wars fans will no doubt remember the pod-race scene from Episode I: The Phantom Menace, where the young Anakin Skywalker speeds through a barren landscape in a jet-propelled, levitating scooter, ultimately edging out the competition. Teenage thrill seekers are not yet able to dash through the air quite like that, but a similar adrenaline rush is now available to almost anyone through the new sport of drone racing, which typically involves radio-controlled quadcopters zooming around a predefined course low to the ground.

The buzzing contraptions are piloted by people with sharp reflexes through video goggles or some other means of obtaining a first-person view, a form of radio-control model flight that goes, naturally enough, by the acronym FPV. Multiple drone-racing leagues have sprung up in the United States, and this summer saw the first Drone Nationals (more properly, the 2015 Fat Shark U.S. National Drone Racing Championships), which took place at the California State Fair in Sacramento last month.

The attraction of drone racing is easy enough to understand. What puzzles me is how an organized sport could emerge in the face of what appears to be a legal prohibition on the whole activity.

You see, in June of 2014 the U.S. Federal Aviation Administration issued its “interpretation” of current regulations on model aircraft, an interpretation that bars FPV flight. Or at very least, it bars the used of video goggles for FPV. Whether you can use a video monitor to fly a radio-controlled model aircraft is open to interpretation of the interpretation.

The FAA’s justification for prohibiting FPV is that the pilot’s eyes are not on the aircraft, which in its view is contrary to the part of the 2012 law that says that for a flying device to be considered a model aircraft, it must be flown “within visual line of sight of the person operating the aircraft.” Traditionally, modelers have taken “visual line of sight” to mean that the model must be close enough that the pilot can see it if he looks in the right direction. But with its 2014 interpretation, the FAA redefined this phrase to mean that the pilot needs to keep the model in sight at all times, and it very specifically prohibited the use of video goggles.

You’d think that after issuing such a formal statement, the FAA would frown on something like the recent Drone Nationals. In fact, the FAA fully supported this competition and even sent two representatives to Sacramento to attend. “We started a dialog with [the FAA] from the moment we designed the event,” says Scott Refsland, one of the organizers.

Photo: Drone Nationals
Can you spot the drones?

So does the FAA allow model aircraft to be flown by FPV or not? After the agency issued its June 2014 interpretation, I concluded it was prohibiting this activity and ceased pursuing a hobby I had enjoyed for several years. But discovering the FAA’s warm reaction to the recent Drone Nationals spurred me to dig deeper and try to figure out just what the regulatory situation is now with FPV in the United States. The answer, it turns out, is muddy.

The first source I approached was Brendan Schulman, who recently took up a post as vice president for policy and legal affairs for the drone maker DJI. “It’s not currently clear whether [the June 2014] interpretation is the agency’s final position,” says Schulman. He points to signs that the FAA may indeed be reversing course on FPV, at least in situations where there is no possible threat to full-scale aircraft, such as for a drone race conducted, say, within a forest or at low altitude over a stadium, as was the case at the Drone Nationals. In particular, he notes that the Notice of Proposed Rulemaking that the FAA released this past February—which outlines what future regulations might look like for small drones—allows FPV in certain circumstances.

Seeking more clarity, I contacted Rich Hanson, who works on government and regulatory affairs for the Academy of Model Aeronautics (AMA), a national membership organization for aircraft modelers. “You got to remember that the interpretive rule is not regulation,” says Hanson. He explained that after the FAA issued its 2014 interpretation, the AMA, among other disgruntled parties, filed legal action to block the changes. According to Hanson, the AMA’s petition for review is being held in abeyance by the courts as the FAA works though the many thousands of public comments it received and, perhaps, makes further changes or clarifications. How long will that take? “That’s the frustrating part,” says Hanson. “They can drag this out as long as they want.”

In the meantime, should a responsible modeler fly by FPV or not? “I don’t envision that [the FAA] would take action,” says Hanson. And the AMA has never changed its policy on FPV, which is to allow it so long as it is done in a safe way (that is, following some very specific safety guidelines). Still, just because the practical likelihood of getting into trouble with the FAA is low, that doesn’t mean you should flout the FAA’s wishes. But does the FAA’s still wish that modelers not fly by FPV? And if so, what’s one to make of the FAA’s participation in the Drone Nationals?

John Goldfluss, who was one of the FAA representatives at that event, sheds some light on this question, although he stresses that his views should not be taken to represent the FAA’s official position. He regarded the Drone Nationals as a test, which the FAA participated in to see whether loosening its stance of FPV might be warranted, at least in some very well controlled situations.

I suppose that’s one way to reconcile the FAA’s earlier interpretation prohibiting FPV with its participation in the Drone Nationals. But it still doesn’t make much sense to me, for the following reason:

Imagine that the FAA concludes that flying models by FPV should be allowed at events run like the Drone Nationals, where the FAA was informed and invited to participate, and where there were well-crafted and carefully executed safety procedures in place. That’s all well and good. But the people who fly at the Drone Nationals also need to practice somewhere. And the vast majority of aspiring drone racers will never get the opportunity to fly at the Nationals anyway. Perhaps they’ll just compete at local events. Or maybe they’ll only race informally against a buddy or two. How can they do that if the FAA still frowns on flying radio-controlled model aircraft by FPV in general?